The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-04-21

for appellee and appeal was taken.
! The evidence showed that the lien of ap-
! pellant was prior to conveyance to
appellee, but was never recorded, and
Manning had no notice of it when he
purchased the property. 1t was also
shown that the purchase of the sheep was
made by the extinguishment Of debt
from Watts to appellee, and the assump
ton by appellee of two debts due by
Watts, one of which was paid after com
mencement of this suit, and the other was
note which appellee had guaranteed for
Watts previous to the purchase of the
sheep by Watts. There are many errors,
but the three principal questions are:
First-Is Manning protected against
the unrecorded lien as a bona fide pur-
chaser for value?
Seconds he protected as a purchaser
within the meaning of the chattel mort
gage act?
Third-Was it competent to prove an
indebtedness from Watts to Manning by
the admissions of the latter?
First-It has been settled in this state
that one who buys at volun-
tary sale from his debtor,
and pays no money, but credits
Illo VI bU0 COHSlu6TdblOu
pre-existing debt is not bona fde pur
chaser for value, because he loses nothing
if the apparent title if his vendor shall
prove worthless.
In this case Manning parted with no
valid security or incurred no new liabil-
tiles. In regard to the assumption of the
note which he guaranteed, the holder of
the note was in no better position by such
assumption, and it would only affect the
parties to it, unless accepted by the
holder.
The Hogan mortgage which he paid off
was no new consideration, but he had to
pay it to perfect his title, and if it was
new consideration, it was paid off after
commencement of this suit The agree
ment as to the debt was not valid con-
sideration.
Second-It has been held by this court
that a chattel mortgage unrecorded is
void as to creditors, but the
word Creditors" means creditors
who have lien of some kind. The act of
1910, and the present act on the subject,
have the same meaning.
1t has been laid down that against
general creditor who holds no lien an I'M
recorded mortgage is valid Mess i'm
peached by fraud, etc. The statute puts
mortgages and other liens on the same
footing. AS the appellee did not acquire
lien by process of law he is not entitled
to protection against the unrecorded lien.
Third-The court erred in admitting
Watts testimony about his indebtedness
to Manning, for while this was competent
on a question between the parties, it could
not bind third party not present.
For the errors pointed out the judgment
is reversed and the cause remanded.
W. V. r. Watson VS.. j. X. Walker g. Co.,
from Caldwell county. Opinion by Gaines,
A. j.
This was parole contract be-
tween the parties to this appeal about
the purchase of cotton. Appellees
were to ship the cotton to appellant who
was to pay appellees drafts, and the cot
ton was to be paid for according to its
value in Houston. The only question be-
tween them wac as to the time when APP
pellant should report shortage in weights
and difference in grades. Appellees
claimed 1t should bo done Immediately on
receipt of cotton, and appellant claimed
that, as the different shipments were
mixed up and without marks to distin-
guish them, he could not report until the
end of the season.
The first error assigned is that the
court erred in allowing one of the appel
lees to testify, that they had contracts
with other parties and that they had no
trouble, etc. We are of the opinion that
the court erred in permitting the defend
ant to testify that they had no trouble
with other parties, although it was com
pstent to testify about cotton shipped to
other parties. The second error charged |
was that the court charged the jury be-
lieved the failure to make |
a return of weights, ETC., in |
duced defendant to continue ship